Part of the problem is that people think — incorrectly — that if they don't admit to misconduct, they can just kind of hem and haw and mumble about the subject without getting in trouble. Generally, this is not so. Anything more complicated than "I'm innocent, fuck you, talk to my lawyer" is full of peril. That's because when we are facing the stress of an accusation and of scrutiny, and gasping for "safe" things to say, we often wind up just blurting out something that sounds awful. There's a great scene in the movie version of Presumed Innocent that illustrates this — Rusty Sabitch has just been accused by of killing his colleague and secret lover at her home on a particular date, and Rusty blurts out something like, "What was that, a Tuesday?"

Harman has been accused — mostly by anonymous sources — of having a telephone conversation with an Israeli agent in which she agreed to intervene with the Justice Department on behalf of American-Israel Public Affairs Committee agents Stephen Rosen and Keith Weissman, who stood indicted for espionage until the Justice Department sought to dismiss their indictment last week. The anonymous leakers claim that the call was intercepted in a post-9/11 national security wiretap, and that in the course of the conversation Harman agreed to intervene in exchange for AIPAC's support of her quest for the chair of the House Intelligence Committee.

There's one acceptable and right way for Harman to address this — it's to say something like this: "I talk to a lot of people, and they ask me to do a lot of things. But of this I am certain: I never agreed to intervene in any criminal case in exchange for anyone's support of me on anything. I can't remember the details of every conversation I had four years ago, but I know for a certainty that I would never agree to sell my office like that."

But that's not what she's done. She gave an interview to NPR in which she wandered all over the pitted landscape of partial and qualified denial. First she said there's no way to know if there was a phone call:

We don't know if there was a phone call.

Then, in response to questions about whether she said what she is accused of saying, she replied that the transcripts of such calls, if released, will show what she said, and further objected that it is permissible for lawmakers to talk to people about lobbying:

Any conversation like that, ever?

Well, how do we know? That's why I have written —

Well, do you remember? Do you remember —

— this morning to Attorney General [Eric] Holder asking him to release any transcripts of any interceptions of my conversations without any redactions — that means don't cross anything out — to me and my intention is to make them public, and then we'll see what I may or may not have said four years ago in conversations with an advocacy group like AIPAC or any other groups about the chairmanship of the intelligence committee or anything else. It's totally proper for members of Congress to talk to advocacy groups and our constituents; that's part of our job.

She evades a direct question about whether she remembers the conversation once more, and then — having suggested that she doesn't know if the call happened, and doesn't remember what happened on the call — she argues that the wiretapping was inappropriate because she was talking to an American citizen.

Finally, she resorts to the classic "they took me out of context" defense.

All in all, it's a miserable performance. I recognize that politicians face difficulties in taking my "just shut up" advice, since they need to manage not merely their relationship with the criminal justice system but their public reputation and political fortunes. But I don't see how Harman's answers served either. The answers she gave strongly conveyed the sense of a person who is hedging her bets about what she did or did not say until she sees what's on the transcripts. This is fatal to her credibility. I might have thousands of business telephone calls per year, and I might have great difficulty remembering the details of any particular one — but reasonable people expect that I would remember if someone asked me to sell my influence for support towards getting a plum position. Harman's failure to confront that core part of the allegation head-on, and deny it, renders her entire public stance disastrous for her. If she can't deny it, she ought to shut up about it.

The answer that was, basically, "I'm not going to say what I talked about on that call until I've seen the transcripts" is maybe the best example of "I'm not going to start lying until I know exactly what you know" ever.

Begging for the release of transcripts that may be classified and therefore not likely to be released for reasons having nothing to do with saving your dangling ass doesn’t help your credibility.

When unnamed government officials are leaking the contents of those transcripts, with no verification that the transcripts are accurate, it's rather bothersome that Ms. Harman can't see or discuss them.

Between Jane Harman, who is willing to talk, and an unnamed leaker in the paper that published Jayson Blair, Judith Miller, and publicized the almost utterly unfounded, anonymous allegations against John Yoo, I'm rather more inclined to go with Harman. I appreciate Ken's point in this post, but think it misses the larger point, as do you.

The Times should name its sources. Since it won't, until the Justice Department does release the documents, I'm rather sympathetic to Harman.

Say the New York Times prints a story saying that anonymous sources have told them there may be secret evidence, collected illegally by the government, that I have been fucking goats at midnight in the Capitol Rotunda.

It's entirely reasonable for me to argue that the New York Times ought not print stories so sourced, and that even if the secret evidence exists, it's appalling that the evidence was gathered illegally and that it is being marshaled against me in the press anonymously.

However, if my response incorporates some of that critique, but also veers off into "I cannot possibly remember every thing I have or have not fucked in the Rotunda" and "we do not know if there was fucking by me in the Rotunda, but what I fucked in the Rotunda was not, technically, goat," it is inescapable that this will become the story. In other words, in addition to getting the accused into more trouble, non-denial-sort-of-quasi-denials-in-a-way have a nasty habit of obscuring the more important issues in play.

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"If you come to Popehat because you think that it is a law blog, you are sorely mistaken. Popehat is a geek blog, and it's a matter of mere happenstance that most of the bloggers here are law geeks. Some, such as Ken and Patrick and Charles, have carried their preoccupation to absurd extremes...." ~ David (previous)